Supersession and request for appeal - advice please?

Client attends FtT in January 2013 relating to a LCW decision of February 2012 and is awarded ESA (WRAG) on basis of his evidence as well as GP report dated July 2012.

In July 2013, a supersession request is made, for client to be placed into the support group on basis cannot mobilise 50 metres, and with copy of same GP report again.

In September 2013, letter received to say to evidence of change of circumstances and states client has right of appeal.

Late appeal lodged in November 2013, and letter received dated December 2013 saying they’re considering request and if no change, will send appeal to HMCTS.

Contacted DWP now and they say appeal was wrongly accepted and they have NFA, as grounds for supersession were never established (they also said that challenge to FtT decision would have been correct approach at that time). They have said that they will put in request for reassessment of client now and he will have to go through ESA50 and WCA to assess whether should be in support group or not.

I’m struggling with the supersession request - on the one hand, I agree that no new evidence has been provided that distinguishes client’s circumstances at date of application, from the previous decision of the FtT (indeed the supersession letter doesn’t mention anything at all explicitly about any change or deterioration in his health).

Sec. 10(2) of SSA 1998 states a DM need not consider any issue not raised by the application and the commentary to reg 6(2)(a)(i) states that a Tribunal of Commissioners suggested it would be improper for SoS to supersede FtT decision where CoC occured before date of decision and the FtT was well aware of it. I accept that this isn’t the precise case here, but the GP report that was enclosed with the supersession request is exactly the same one as the FtT had when making their decision, so the principles seems pretty similar.

In a nutshell, the original supersession request is, in my opinion, quite lacking and I’m wondering whether we just need to bite the bullet and let the request that has just been logged to proceed towards it’s conclusion, or am I missing something here?

Hi Paul,

I’ve never personally seen a case whereby a retrospective supercession request is made after a successful tribunal. However, logic does imply that tribunal are setting aside Feb 2012 decision and any post dated evidence (july 2012) is only persuasive, therefore giving you right to rely upon that evidence later for supercession. 

In the legislation cited, to me, it seems this discusses CoC before decision (ie before Feb 2012) therefore making it improper for SoS to backtrack or overrule tribunal later.  Essentially you are doing something different - your GP evidence is lodged after original decision and therefore you are not questioning integrity of tribunal decision.

In your case, I think alot depends on strength of evidence and whether you can distinguish WRAG from SG.

The DM in this instance is only asked to consider, whether in July 2013, claimant satisfies SG at that time and if there is a change in circs between original decision and new supercession.  I, personally think that because the GP evidence is a year old does not prevent you arguing your client satisfies SG at the time of supercession. Remember any other changes may constitute CoC also. 

If the evidence (July 2012) is strong enough to establish worsening of condition between original decision (Feb 2012) and you are confident that it would stand test of tribunal give it a go.

Otherwise you can elect the long winded DWP route.

Another quicker strategy - - - A client of mine was in a similar position (won tribunal - placed in wrag - then did supercession immediately after successful tribunal (not retrospective).

DWP wanted to do a medical. I complained to DWP that a new ESA50 nor a medical was required as our client was already deemed to have LcW and my MR only sought to answer question of supercession and deterioration - following complaint DWP accepted evidence was strong enough to warrant immediate placement in SG without form filling or medical. 

Good luck with it all ...

Cheers, thanks for the reply.